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General Terms of Delivery and Payment
DESMA Schuhmaschinen GmbH
I. General information
1. These terms and conditions as well as any and all separate contractual
agreements shall be deemed as a basis for all deliveries and services.
No deviating terms and conditions of purchase of the Buyer shall become part of the
contract even when an order is accepted. A contract shall – in the absence of a
separate agreement – materialise upon receipt of the written order confirmation
from the supplier.
2. The Supplier reserves the rights to property and copyright for samples, cost
estimates, sketches, etc., information of a physical and immaterial type – even in
electronic form; they may not be made accessible to third parties. The Supplier
undertakes to obtain the prior consent of the Buyer before making any information
and documents described as confidential by the Buyer accessible to third parties.
3. No public statements of the Supplier in particular in advertising will be deemed as
contents of the contract. The Buyer may not derive expectations for certain features
of the delivered object from any descriptions and presentations in public statements
made by the Supplier. Documents such as figures, sketches, information on weight
and dimensions, which the Supplier may enclose with his offer, shall only be
deemed as approximately decisive insofar as they are not expressly described as
binding.
II. Price and payment
1. In the absence of a separate agreement the prices shall apply ex works including
loading in the works, however excluding packaging and unloading. The prices do
not include the applicable rate of value added tax. The prices valid on the day the
contract is entered into will always apply. The supplier reserves the right to change
his prices accordingly if there are any reductions or increases in costs after
conclusion of the contract, in particular owing to collective wage agreements or
changes in prices of materials. The Supplier shall provide proof of this to the Buyer
upon request.
2. In the absence of a special agreement the payment shall be made without any
deduction onto the account of the Supplier and indeed:
- 30 % payment on account after receipt of the order confirmation,
- 60 % with the declaration of the Supplier that the goods are ready for dispatch,
- 10 % 30 days after commissioning, no later than 60 days after delivery
Invoices for spare parts and invoices for services shall be due and payable within 30
days without deduction.
3. The Buyer shall insofar only be entitled to the right to retain payments or to set off
against counter claims if his counter claims shall be undisputed or have been
declared final.
4. The Buyer shall be in default when a reminder is sent after the due date, no later
however than 30 days after due date and receipt of an invoice or an equivalent
payment demand of the supplier. Should the Buyer be in default of payment then
the Supplier shall be entitled to demand interest on default in the amount of the
respective bank rates for overdraft facilities from due date at least however in the
amount of 8 % p.a. above the base lending rate according to § 1 of the Discount
Rate Transference Act of 9 June 1998 (BGBl. I P. 1242). In the event that the
Supplier shall be in the position to prove higher damages due to default he shall be
entitled to assert these.
5. The claims of the Supplier shall, for example, be due and payable immediately
independent of the term of any collected and irrevocably credited bills of exchange if
the terms of payment are not observed or the supplier is aware of circumstances
which are suitable for reducing the creditworthiness of the Buyer. The Supplier shall
then also be entitled to only execute any deliveries still outstanding against an
advance payment. Should the Buyer be in default of payment then the Supplier is
additionally entitled to rescind from the contract and also to demand compensation.
The Supplier may also prohibit the resale and installation of the delivered goods and
to demand their return or the assignment of the indirect possession of the delivered
goods at the costs of the Buyer. The Buyer shall hereby now already authorize the
Supplier to access his company in the cases mentioned and to remove the
delivered goods, the removal shall not be deemed as a rescission from the contract.
III. Time of delivery, delay in delivery
1. The time of delivery may be derived from the agreements of the contractual
parties. The observance of the time by the Supplier presumes that all commercial
and technical questions have been clarified between the contractual parties and the
Buyer shall have fulfilled all obligations, for which he is responsible, such as e.g.
provision of the necessary official certificates or permits or has made a down
payment. If this is not the case, then the delivery time shall be extended by a
reasonable extent. This shall not apply insofar as the Supplier shall be responsible
for the delivery. In case of a subsequent change to the order the Supplier shall be
entitled to extend the delivery time.
2. The observance of the delivery period shall be subject to the correct and timely
self-delivery. Should the Supplier become aware of any delays he shall inform the
Buyer as soon as possible.
3. The delivery period shall be deemed as observed if the delivered object has left
the Supplier’s plant before expiry of the period or notification has been given that
the goods are ready for delivery. Insofar as the goods are to be accepted –
except with justified refusal of acceptance – the acceptance date shall be decisive,
alternatively the notification that the goods are ready for acceptance.
4. In the event that the dispatch or the acceptance of the delivered object shall be
delayed for reasons for which the Buyer shall be responsible then he shall be
charged the costs incurred through the delay beginning one month after notification
has been given that the goods are ready for dispatch or acceptance. In particular,
the Supplier shall be entitled to store the delivered object with third parties at the
risk and the cost of the Buyer. The Supplier shall also be entitled to dispose
otherwise of the delivered object after setting and unsuccessful expiry of a
reasonable deadline, to deliver the goods to the Buyer with a reasonable extended
deadline and to charge the prices applicable upon delivery.
5. In the event that the non-observance of the delivery time shall be due to force
majeure, industrial disputes or any other events, which are outside of the sphere of
influence of the Supplier then the delivery time shall be extended accordingly and
indeed no matter whether these events occur at the supplier or a subcontractor.
Neither will the Supplier be responsible for the afore-mentioned events if they occur
during an already existing default. The Supplier shall inform the Buyer of the
occurrence and the end of such circumstances as soon as possible.
6. The Buyer shall be entitled to rescind from the contract without notice if it shall be
finally deemed impossible for the Supplier to perform the full service before passing
of risk. In addition to this, the Buyer may rescind from the contract if it shall be
impossible to execute a part of the delivery of an order and he shall have a justified
interest in refusing the part delivery. If this is not the case then the Buyer shall pay
the contractual price due for the part delivery. The same shall apply in the case of
incapacity of the Supplier. Incidentally‚ Section VII. 2 shall apply.
Should it be impossible or in the case of incapacity during the delay in acceptance
or should the Buyer be exclusively or mainly responsible for these circumstances he
shall be obliged to pay a consideration.
7. Should the Supplier be in default and the Buyer be entitled to damages from this
then he shall be entitled to demand a flat rate compensation for default. It shall
amount to 0.5% for each full week of the delay, in total however a maximum of 5 %
of the value of that part of the total delivery which cannot be used in time or as per
contract owing to the delay.
Should the Buyer set the Supplier a reasonable deadline for performance – taking
into account the statutory exceptional cases – after due date and should the
deadline not be met, the Buyer shall be entitled to rescind from the contract within
the framework of the statutory regulations. Further claims from delay in delivery are
determined exclusively according to Section VII.2 of these terms and conditions.
8. In the event that the Buyer shall cancel his order or refuse acceptance of the
delivered object for reasons, for which he shall be responsible, then the Supplier,
insofar as he shall not insist on performance, shall be entitled to cancellation costs
of 10 per cent of the order value instead of compensation without having to provide
any further proof. Besides the cancellation costs, the Buyer shall pay for any
equipment of the delivered object specially produced for him, which will upon
request be made available to him.
IV. Passing of risk, acceptance, transport
1. The risk shall pass onto the Buyer when the goods are handed over to the carrier
or freight forwarder no later however than if the delivered object has left the works
and indeed also if part deliveries take place or the Supplier has assumed
responsibility for other services, e.g. the dispatch costs or delivery and installation.
Insofar as an acceptance has taken place this shall be decisive for the passing of
risk. It must be carried out immediately on the acceptance date, alternatively after
notification by the Supplier that the goods are ready for acceptance. The Buyer may
not refuse acceptance in the case of an insignificant fault.
2. In the case that the dispatch or acceptance is delayed or omitted owing to
circumstances which cannot be attributed to the Supplier the risk shall pass to the
Buyer from the date of the notification that the goods are ready for dispatch or
acceptance. The Supplier undertakes at the cost of the Buyer to take out any
insurances, which he may demand.
3. Part deliveries are permitted insofar as reasonable for the Buyer.
4. In the case of damages in transit the Buyer shall immediate arrange for the facts
to be recorded by the responsible departments.
5. Delivered objects are, even if they show insignificant faults, to be accepted by the
Buyer notwithstanding the rights from Section VI. of these terms and conditions.
6. The Supplier will not take back any transport- nor other packaging according to
the stipulations of the packaging regulations.
V. Reservation of title
1. The Supplier reserves the rights to the property of the delivered object until
receipt of all payments from the contract of delivery.
2. The Supplier shall be entitled to insure the delivered object at the cost of the
Buyer against theft, breakage, fire, water and other damages insofar as the Buyer
shall not have taken out any such insurance and have provided proof of such.
3. The Buyer may neither sell, pledge nor assign as collateral the delivered object
subject to Section V.8. He shall inform the Supplier immediately in case of pledges
and confiscation or other disposals by a third party.
4. In case of any conduct of the Buyer which is in breach of the contract, in
particular in case of default of payment, the Supplier shall be entitled to take the
delivered object back after warning and the Buyer is obliged to return this.
5. Owing to the reservation of title the Supplier may only demand return of the
delivered object if he has rescinded from the contract.
6. The application for initiation of insolvency proceedings entitles the Supplier to
rescind from the contract and to demand the immediate return of the delivered
object.
7. In case of processing, combination and mixing of the reserved goods with other
goods by the Buyer the Supplier shall be entitled to the co-ownership of the new
object as a proportion of the invoice value of the reserved goods compared with the
invoice value of the other goods used. In the event that the title of the Supplier shall
expire by combining or mixing then the Buyer shall hereby assign him now already
the rights of ownership in the new stock to which he is entitled or the object to the
extent of the invoice value of the reserved goods and shall keep these safe for him
free of charge. The rights of co-ownership incurred through this shall apply as
reserved goods in the sense of Section V.1.
8. The Buyer may only sell reserved goods in usual business transactions under his
normal business terms and conditions and as long as he shall not be in default
under the condition that he shall agree a reservation of title with his buyers and that
the claims from the resale pass to the Supplier according to Section V.9. to V.11. He
shall not be entitled to any other disposals of the reserved goods.
9. The claims of the Buyer from the resale of the reserved goods will hereby now
already be assigned to the Supplier, who shall accept this. They will serve to the
same extent as security as the reserved goods.
10. In the event that the reserved goods are sold by the Buyer together with other
goods not sold by the Supplier then the assignment of the claim shall apply from the
resale only in the amount of the invoice value of the respectively sold reserved
goods. In the case of the sale of goods for which the Supplier has co-ownership
shares acc. Section V.7. the assignment of the claim shall apply in the amount of
these co-ownership shares.
11. In the event that the reserved goods are used by the Buyer to satisfy a service
contract then section V.9. and V.10. shall apply accordingly for the claim under this
contract.
12. The Buyer shall be entitled to collect claims from the sale acc. Section V.8. and
V.11. until the revocation of the Supplier which shall be permitted at all times. The
Supplier shall make use of the right to revocation only in the cases mentioned in
Section II.3.
13. The Buyer is in no way authorized to assign the claim. Upon request of the
Supplier he undertakes to inform his buyers immediately of the assignment to the
Supplier and to give the Supplier the information and documents necessary for
collection.
14. In the event that the value of the securities granted to the Supplier exceeds the
secured claims altogether by more than 25 % then he shall upon request of the
Buyer insofar be obliged to release securities at his choice.
15. In the event that the reservation of title or the assignment is not deemed
effective according to the law applicable, in the area of which the goods are located,
then the security is deemed as agreed which corresponds with the reservation of
title or the assignment in this area. If the assistance of the Buyer is necessary here
then he shall at his own costs undertake all measures which are necessary for
justifying and retaining such rights.
VI. Claims for faults
The Supplier shall provide warranty for defects of quality and defects in title of the
delivery under the exclusion of further claims – subject to Section VII. – as follows:
Defects of quality
1. All parts, which prove to be faulty owing to a circumstance before passing of the
risk, are to be improved free of charge at the choice of the Supplier or to be
replaced without faults. The detection of such faults is to be reported to the Supplier
immediately in writing. Replaced parts shall become the property of the Supplier.
2. The Buyer shall give the necessary time and opportunity to undertake all
improvements and replacement deliveries which may appear necessary to the
Supplier after consultation with the Supplier; otherwise the Supplier shall be
released from the liability for the ensuing consequences. Only in urgent cases with
risk of danger to the operational safety or to prevent disproportionately high
damages, whereby the Supplier is to be notified immediately, the Buyer shall be
entitled to correct the faults himself or have these corrected by third parties and to
demand that the Supplier reimburse the necessary expenses.
3. Of the direct costs incurred through the improvement or the substitute delivery the
Supplier shall bear – insofar as the complaint turns out to be justified – the costs of
the replacement including dispatch. He shall in addition to this bear the costs for the
dismantling and installation and the costs for providing any necessary fitters and
assistants including travelling expenses insofar as no disproportionate burden is
incurred to the Supplier through this.
4. Within the framework of the statutory regulations the Buyer shall be entitled to
rescind from the contract if the Supplier – taking into account the exceptional cases
laid down by law – allows a reasonable deadline set to him for the improvements or
substitute delivery due to a defect of quality to pass unsuccessfully. In the event that
only an insignificant fault exists the Buyer shall merely be entitled to reduce the
contractual price. The right to reduction of the contractual price remains otherwise
excluded.
Any other claims shall be determined according to Section VII.2. of these terms and
conditions.
5. No warranty shall be assumed – insofar as not the responsibility of the supplier –
in particular in the following cases:
- Unsuitable or improper use,
- faulty assembly or commissioning by the Buyer or third party,
- natural wear and tear,
- faulty or negligent treatment,
- improper service,
- unsuitable production equipment and facilities,
- faulty building work,
- unsuitable building substance,
- chemical, electrochemical or electrical influences
- delivery of used machines.
6. In the event that the Buyer or a third party shall make improper improvements the
Supplier shall not be liable for the ensuing consequences. The same shall apply for
any changes to the delivered object carried out without the prior consent of the
Supplier.
Defects in title
7. If the use of the delivered object results in the infringement of industrial property
rights or copyrights in the domestic country, the Supplier shall at his costs
principally procure the Buyer the right to the further use or modify the delivered
object in such a way reasonable for the Buyer that the infringement of the industrial
property rights no longer exists. If this is not possible at commercially reasonable
conditions or within an appropriate deadline the buyer shall be entitled to rescind
from the contract. Under the given pre-requisites the Supplier shall also be entitled
to rescind from the contract. In addition to this, the Supplier shall release the Buyer
from undisputed or legally declared claims of the owners of the industrial property
rights concerned.
- The Buyer supports the Supplier to a reasonable extent in defending the asserted
claims or allows the Supplier to execute the measures for modification according
to Section VI. 7.,
- The Supplier reserves the right to all measures for defence including extra-judicial
provisions,
- the legal defects are not based on instructions of the Buyer and
- the infringement of right was not caused due to the fact that the Buyer
independently changes the delivered object or has changed this in a way not as
per contract.
VII. Liability
1. If the delivered object may not be used as per contract by the Buyer due to a fault
of the Supplier owing to the omission or faulty execution of proposals made and
advice given before or after conclusion of contract or through the infringement of
other secondary contractual obligations– in particular instructions for operation and
service of the delivered object – then the provisions of sections VI. And VII. 2 shall
apply accordingly by exclusion of further claims of the Buyer.
The Buyer undertakes to personally examine the deliveries and services performed
by the Supplier for their suitability and the intended use.
2. For damages not incurred to the delivered object itself the Supplier shall be liable
– for no matter what legal reasons – only
a. in case of wilful intent,
b. in case of gross negligence of the owner / the bodies or executives,
c. in case of negligent injury to life, body, health,
d. in case of faults, which he maliciously did not disclose or if he guaranteed the
absence of such,
e. in case of faults to the delivered object insofar as liability is assumed according to
the product liability act for physical or material damages to the privately used
objects.
In case of a negligent breach of essential contractual duties the Supplier shall also
be liable in case of gross negligence of non-executives and in case of slight
negligence, in the latter case limited to those damages typical as per contract and
reasonably foreseeable. All other claims are excluded.
VIII. Statute of limitations
All claims of the Buyer – for no matter which legal reasons – shall become statutebarred in 12 months. The statutory deadlines shall apply for any claims for
damages according to Section VII.2. a – e. They shall also apply for defects to a
building or for delivered objects, which were in line with their customary use used for
a building and shall have caused such to be defect.
IX. Use of software
Insofar as the scope of delivery shall include software the Buyer shall be granted a
non-exclusive and non-assignable right to use the delivered software including its
documentation. It will be handed over for use for the delivered object intended for
this. It is not permitted to use the software on more than one system.
The Buyer may only copy, revise, translate or convert the software from the object
code to the source code in the scope as permitted by law (§§ 69 a ff. UrhG
[Copyright Act]). The Buyer undertakes not to remove or change information on the
producer – in particular copyright notices – without the prior express consent of the
Supplier.
All other rights to the software and the documentation including the copies shall
remain with the Supplier or the software supplier. It is not permitted to grant sublicences.
X. Applicable law, place of jurisdiction, place of performance, Incoterms
1. The decisive law of the Federal Republic of Germany for legal relations between
domestic parties to each other shall apply exclusively for all legal relations between
the Supplier and the Buyer.
2. Place of jurisdiction shall be the court of jurisdiction for the registered seat of the
Supplier. The Supplier shall however be entitled to take action at the headquarters
of the Buyer.
3. Insofar as nothing else may be derived from the order confirmation the registered
seat of the Supplier shall be the place of performance.
4. This contract shall be subject to the INCOTERMS 2010. Insofar as nothing else
may be derived from the order confirmation the delivery shall be agreed “FCA
Achim”.
___________________________________________________________________
Date, stamp and legally binding signature of the customer
Status: 01.05.2011
8. The obligations of the Supplier stated in Section VI. 7. are subject to Section VII.
2. conclusively in the event of the infringement of industrial property rights or
copyrights. They shall only exist if
- the Buyer informs the Supplier immediately of asserted infringements of industrial
property rights or copyrights,
DESMA Schuhmaschinen GmbH • Desmastr. 3-5 • D-28832 Achim
Phone: *-4202-990-0 • Fax: *-4202-990-210 sales and distribution • Internet: http://www.desma.de • e-mail: [email protected]
Registered seat of the company: 28832 Achim • Register of companies Walsrode HRB 121162 • Managing directors: Christian Decker, Klaus Freese